from the little-known-512(f)-clause-about-'word-became-flesh' dept

A really weird decision with some implications for DMCA safe harbors has come out of a US district court in California. The case revolves around paintings and pictures licensed by Greg Young Publishing International [GYPI], several of which appeared on Zazzle's website and, consequently, were turned into physical reproductions (mugs, t-shirts, etc.) via Zazzle's automated print-on-demand process.

After some discussion about which prints GYPI actually controls for infringement claim purposes, the court gets down to addressing the supposed infringement. Discussing the safe harbor provisions, the court finds Zazzle qualifies for these protections. Sort of. The court says Zazzle qualifies as a provider of online services and, thanks to GYPI never sending any DMCA notices, it had no knowledge of the infringement.

“Zazzle had the right and ability to control the types of products it produced,” in contrast to how eBay/Amazon allow vendors to select which products to sell. This is a non-sequitur because the alleged infringements are attributable to the images selected and uploaded by Zazzle’s users. It’s irrelevant to the alleged infringement what cut of T-shirt is selected by Zazzle and who manufactures the raw materials.

At this point, Zazzle should still be protected from the infringement committed by a user. But that's not how the court sees it. The court sees an infringing uploaded image (where Zazzle is still protected) being turned into a physical product and decides this is the point where Zazzle loses its safe harbor. From the decision [PDF]:

GYPI argues that Zazzle had “the right and ability to control” the sale of infringing products because “it is actively involved in selecting the products that are sold, pricing those products, selling the products, manufacturing the products, inspecting the products, and finally packaging and delivering the products.” Doc. 50-1 at 27. Zazzle does not dispute that it engages in these activities. The Court concludes that Zazzle had the right and ability to control the types of products it produced. Unlike eBay or Amazon, Zazzle’s role is not limited to facilitating the sale of products owned and marketed by third parties. Zazzle creates the products. If Zazzle lacks the right and ability to control the sale of products it creates, it is hard to imagine any defendant that would have such a right.

Without the uploads, there would be no infringement. Zazzle may benefit indirectly from the sale of products with infringing images, but the court still feels Zazzle should be held accountable even if it has almost no direct input in the physical product creation other than forwarding the order to the print-on-demand contractor. As Goldman pointed out, the reasoning doesn't add up. But that's OK, says the court, Zazzle's reasoning doesn't add up either.

Zazzle argues that it lacked the ability to control the sale of infringing products because, in practice, “the production process was effectively automatic . . . after a product was ordered and approved by Zazzle’s CMT [content management team].” Doc. 69 at 25. That is a non sequitur. It doesn’t matter if Zazzle lacked the ability to control its production process after CMT approved the product; presumably CMT had the authority to reject products that were infringing. More to the point, even if the entire process were automatic, that would suggest at most that Zazzle had chosen not to exercise its right and ability to reject infringing products, not that it lacked the right or ability to do so. GYPI is entitled to summary judgment that Zazzle is not protected under § 512(c) to the extent it manufactured and sold physical products bearing infringing images.

There is no further attempt made to explain the court's rationale. For some reason, it can't seem to get past the production of physical products, even though Zazzle claims it has no more control over that than it does over uploaded content. In effect, the court sets up a double standard: physical vs. digital. Zazzle is protected if users upload infringing images but not if customers decide they want a copy of this image on a t-shirt or poster.

The CMT mentioned above sounds like little more than a perfunctory infringement check similar to the one that accompanies each image upload. And if the court decides to untwist Zazzle's "non sequitur" and hold it up for examination, Zazzle shouldn't be able to avail itself of DMCA safe harbors at the point of image upload either. The decision is internally inconsistent. Given the number of print-on-demand companies out there, this bizarre internal split on physical/digital infringement could cause problems down the road.

from the stand-up-for-yourself dept

Back in 2008, we wrote about Amazon's questionable demand to book publishers that if they wanted to offer print-on-demand books, they had to use Amazon's own POD solution. A few months later, a class action lawsuit was filed, and after a judge refused to throw out the case, it looks like Amazon quickly agreed to settle (thanks Achura). Unfortunately, from the wording of the agreement, even though this was filed as a class action, it's not clear if it only applies to this one publisher or others as well. It is worth noting that Amazon is allowing the publisher to keep using alternative solutions and also agreed to pay the legal fees of the publisher. Amusingly, a monetary reward was on the table, and the publisher turned it down -- and wanted it written into the settlement that it refused to take money -- but Amazon didn't want that mentioned in the official settlement. Still, it seems unfortunate that at least one publisher had to go through all this trouble just to use the print-on-demand offering of its own choosing. And, while it's great for this one publisher, it leaves out the fact that many others caved in and agreed to deals that required them to only use Amazon's solution.

from the label?-what-for? dept

Continuing the theme of this week about the new ecosystem of companies out there making it ever and ever easier for musicians to do everything a label used to do for them, comes the news (submitted by zealeus) that Amazon and TuneCore have teamed up to make it incredibly easy and cheap to sell CDs on demand. TuneCore is a very popular service with indie bands, helping them get their content onto various music services -- and now they're adding the ability to do incredibly cheap CDs-on-demand via Amazon. The whole thing costs a grand total of $31/year. Wired does some math, and recognizes that at a price point of $8.98 for the CD, a band only needs to sell nine CDs a year to break even. Nine. While some may say the CD market is dying, if you can offer it at almost no cost to the band, why not have it as an option?

The business of print has always been a risky one. While the printing press made it much cheaper to print, there were still significant fixed costs involved. In order to make it economically feasible to print something, you had to make sure there were enough buyers, which involved significant forecasting. There were also significant costs associated with setting up each print run, such that it wasn't economically reasonable to do really custom work. Thankfully, in the past few decades advances in various technologies have made it cheaper and cheaper -- even as the rise of the internet has led many to write off the opportunities for print publishing, and even suggest that paper was dying.

Yet, what if that same trends, of ever decreasing technology costs combined with increasing quality and internet connectivity, enable a new era of print? These trends have the ability to enable things that simply couldn't be done before. We're seeing the beginnings of this with print-on-demand and self-publishing services, but where does it go from here? How far will these technology trends take us in creating totally new opportunities for print? When it's easy and cost effective to not just self-publish, but *micro-publish* suddenly the entire stream of possibilities becomes different. A photographer can publish a special magazine for every attendee at a wedding (even with the attendee's photo customized to be on the front). Or a novelist can let fans buy each chapter to be delivered fresh each month (or week!) as she finishes it. A textbook maker can create a totally customizable textbook, listing out a series of chapters online, allowing professors/teachers/students to create their own combination based on what works best for them.

And those are just a few starter ideas. HP is sponsoring this conversation (with more info at futureofprint.com) about how these trends will enable all sorts of new possibilities and business models. What new opportunities will be enabled thanks to ever cheaper print-on-demand offerings that combine customization, high quality and the connectivity of the internet? What new businesses may spring out of this convergence? What new hobbies, side projects, cultural artifacts? We're looking for creative thinking on where these trends will take us and what they'll enable.

from the putting-liability-where-it-belongs dept

Just last week we wrote about the Republican National Committee suing CafePress for
selling t-shirt designs from users that include RNC trademarks (the "GOP" phrase and the
RNC's elephant). Even though the RNC has backed down, CafePress may be happy to hear that a ruling in a different case seems
to support the idea that CafePress shouldn't be liable. Eric Goldman points us to quite a
series of lawsuits up in Maine between two
families. Apparently, the daughters of the families were once friends in high school
but had something of... er... a falling out. Take your average "former best friends"
dispute and multiply it by about 100. This one involved both girls getting expelled and
one eventually being convicted of a hate crime against the other.

The family of the convicted girl believe they've been wronged, and began a publicity
campaign in their own favor. Part of this campaign involved a self-published book telling
their side of the story. They tried to find a publisher for it, but publishers (wisely,
from the sound of it) wanted no part of it. So, instead, they used a print-on-demand
publisher. The other family, of course, sued everyone involved for defamation, including
the print-on-demand company, BookSurge.

Without even using section 230 of the CDA, BookSurge has been let off the hook in the
case, as the judge noted that it made no sense to include them in the case:

Because BookSurge does not undertake to edit, review or fact-check any of its
publications, it has no means or way of knowing whether defamatory material is contained
within the works that it publishes. BookSurge maintained no editorial control over the
works published. The responsibilities of BookSurge, which are known to the authors of
the works, indicate that it is not an active participant in the creation of any defamation.

This fits with what we've always said about section 230 of the CDA. Even if it didn't
exist, it makes legal sense simply not to allow lawsuits against a mere middleman
for the actions of an end user. It's nice to see the court recognize that here.

from the had-to-see-that-coming dept

Back in March, we wrote about Amazon's surprise decision to only sell print-on-demand books that were serviced through Amazon's own print-on-demand system. This upset an awful lot of book authors who used alternatives and felt that Amazon was blocking them out and forcing them to use a solution they didn't like very much. Amazon tried to quell the anger by explaining the reasoning and saying that authors could still use other POD solutions if they supplied Amazon with an inventory of five books (which sort of defeats the purpose of POD). So, it should come as little surprise that a class action lawsuit has been filed against Amazon, claiming that it's violating anti-trust laws in blocking out other POD suppliers. It may be difficult to prove an actual anti-trust violation -- but no matter what the result, it's rather surprising that Amazon would do this, as the company had to know it would piss off a lot of authors who have been huge supporters of the site for many years. It's hard to see how the trouble of having to fulfill from other POD providers could really be worth that much anger and ill-will.

from the now-that's-one-long-tail dept

It would appear that Philip Parker has taken the concept of "the long tail" to heart. He's created a publishing company that has a bunch of computers search the internet and come up with books on various topics in a nearly totally automated fashion. The details aren't at all clear from the article (and I'm surprised there's no discussion at all of potential copyright issues), but it almost sounds like a sort of madlibs -- where someone just need to fill in some blanks, and the computer automates the rest of the book writing process. As a result, Parker reportedly has over 200,000 books published and available on Amazon to date (though, oddly, my own search turned up many fewer), which are all available for "print-on-demand." From the sound of things, you get the feeling that he could take it back one step further to: generate on demand. In the article he provides an example, creating a new "book" in about 13 minutes. That way, a single sale of each book is pure profit. Of course, you might be wise to question the quality of such books. The reviews I found on Amazon of his books are almost universally quite negative.

In the meantime, if anyone has more info on Parker or Icon Group, and how it deals with copyright issues, I'd be curious to know more. Parker has a video on YouTube which (by title) suggests he has a patent on this whole process (a quick search turns up this patent on a method and apparatus for automated authoring and marketing as the likely patent). The video makes a bunch of claims, but does little to explain how any of this is actually done. Actually, you could say the same thing for the patent itself. It makes a bunch of extremely broad claims, that don't actually do anything to explain how it actually works (which, we had thought, was part of the requirement in getting a patent).

from the well,-that's-not-very-neighborly dept

Amazon has generally been a rather friendly neighbor in the e-commerce world, not acting vindictively against competitors, but focusing on improving its customer experience continuously, and figuring that's a better way to beat the competition. Apparently, that's not working in the print-on-demand space, however. You may recall that in 2005 Amazon bought a print-on-demand company. There are a few other print-on-demand companies out there, some of which have pretty good reputations and are probably more widely known than Amazon's print-on-demand offering. It would appear that Amazon has a problem with that. It's now saying that it won't sell books from competing print-on-demand shops, requiring anyone who wants to do print-on-demand to use Amazon's (more expensive) service. This is a pretty aggressive (and totally unnecessary) move. You would think that Amazon might play nicer. Any bets on how long it takes for another print-on-demand firm to sue over this decision?